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IN THE HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
Gopal Krishan Vyas, Goverdhan Bardhar, JJ.
Bhagirath - Appellant
Vs.
State of Rajasthan - Respondent
Criminal Appeal No. 769 of 2011
Decided On : 19-01-2017
CRIMINAL APPEAL - SECTION 374(2) CR.P.C - MURDER - DYING DECLARATION - ADMISSIBILITY - FITNESS CERTIFICATE - RULE 6.22 RAJASTHAN POLICE RULES, 1965 - SECTION 498A IPC - CRUELTY - DOWRY - CORROBORATIVE EVIDENCE - SECTION 437A CR.P.C - PERSONAL BOND - SURETY BOND - SUPREME COURT - SPECIAL LEAVE PETITION: 1. Dying declaration recorded without obtaining a fitness certificate from a doctor or without the recording authority's satisfaction about the declarant's fitness to speak and understand is doubtful and cannot be relied upon to convict the accused. 2. Inconsistency between multiple dying declarations renders them unreliable and unsafe to base a conviction solely on them. 3. Absence of corroborative evidence to support allegations of cruelty in connection with dowry demand weakens the case for conviction under Section 498A IPC. 4. The accused appellant is entitled to the benefit of doubt and the conviction and sentence are quashed. 5. The accused appellant is directed to furnish personal and surety bonds to ensure his appearance before the Supreme Court in case of a Special Leave Petition or grant of leave.
Fact of the Case:
The accused appellant, Bhagirath, was convicted by the trial court for the offences of murder under Section 302 IPC and cruelty in connection with dowry demand under Section 498A IPC. The conviction was based primarily on two dying declarations of the deceased, Smt. Suresh Devi, recorded by the police and the Executive Magistrate. The accused challenged the conviction in an appeal under Section 374(2) Cr.P.C.
Finding of the Court:
The High Court found that the dying declarations were doubtful and unreliable due to the absence of a fitness certificate from a doctor or the recording authority's satisfaction about the deceased's fitness to speak and understand. The court also noted the inconsistency between the two dying declarations and the lack of corroborative evidence to support the allegations of cruelty in connection with dowry demand. Therefore, the court reversed the conviction and set aside the sentence.
Issues: 1. Whether the dying declarations were admissible in evidence without a fitness certificate or the recording authority's satisfaction about the deceased's fitness to speak and understand? 2. Whether the inconsistency between the multiple dying declarations rendered them unreliable and unsafe to base a conviction solely on them? 3. Whether the absence of corroborative evidence to support allegations of cruelty in connection with dowry demand weakened the case for conviction under Section 498A IPC?
Ratio Decidendi: 1. The court relied on Rule 6.22 of the Rajasthan Police Rules, 1965, which requires a medical officer to examine the declarant to ascertain their fitness to make a lucid statement. The court also referred to the Supreme Court's decision in Laxman v. State of Maharashtra, which held that the absence of a doctor's certificate of fitness does not render a dying declaration inadmissible, but the recording authority must be satisfied that the declarant was in a fit state of mind. 2. The court applied the principles laid down by the Supreme Court in Smt. Kamla v. State of Punjab, Kishan Lal v. State of Rajasthan, Lella Srinivasa Rao v. State of A.P., Amol Singh v. State of Madhya Pradesh, State of Andhra Pradesh v. P. Khaja Hussain, and Sharda v. State of Rajasthan, which emphasize the need for consistency and reliability in multiple dying declarations. 3. The court noted that the prosecution failed to provide any corroborative evidence to support the allegations of cruelty in connection with dowry demand, which weakened the case for conviction under Section 498A IPC.
Final Decision: The High Court allowed the appeal, quashed the conviction and sentence, and directed the accused appellant to furnish personal and surety bonds to ensure his appearance before the Supreme Court in case of a Special Leave Petition or grant of leave.
Gopal Krishan Vyas, J.
1. In this criminal appeal filed under Section 374(2) of Cr.P.C, the accused appellant, Bhagirath, has challenged the judgment dated 29th of Aug., 2011 passed by learned Addl. Sessions Judge, Rajgarh, District Churu (Trial Court) in Session Case No. 18/2008, by which the accused appellant, Bhagirath, was convicted for the offences under Sections 498A and 302 of IPC and following sentence was passed against him: -
498A of IPC: Three Years' Simple Imprisonment along with fine of Rs. 500/-. In default of payment of fine, to further undergo six months' simple imprisonment.
302 of IPC: Life Imprisonment and fine of Rs. 1,000/- and in default of payment of fine, to further undergo one year simple imprisonment."
2. Briefly stated, the facts of the case are that on 16.05.2008 at 03.50 PM, Assistant Sub-Inspector, Mangilal (PW.12) of Police Station Rajgarh, recorded statement ('Parcha-Bayan') Ex. P/19) of Smt. Suresh Devi, wife of accused appellant, Bhagirath, who was under treatment at Government Hospital, Rajgarh, District Churu. In the 'Parcha-Bayan', it was alleged by Smt. Suresh Devi, that my husband after consuming liquor used to harass me and on the date of incident at about 12-12.30 in the afternoon, when I was sleeping inside the house under "Chhapra" (Shed), my husband poured kerosene upon me and lit fire. On the basis of above 'Parcha-Bayan' of Smt. Suresh Devi, F.I.R. No. 158/2008 was registered at Police Station- Rajgarh, u/s. 498A and 307 of IPC against the appellant, Bhagirath, and investigation commenced.
3. During investigation, Smt. Suresh Devi, died on 25.05.2008, therefore, offence u/s. 302 of IPC was added. After completing the investigation, Challan was filed against the accused appellant for offences u/s. 302, 498A of IPC in the court of learned A.C.J.M., Rajgarh, from where the case was committed for trial to the court of Addl. Sessions Judge, Rajgarh, District Churu.
4. The learned trial court thereafter after providing opportunity of hearing to the accused appellant, framed charges against the accused appellant for offence u/s. 302 and 498A of IPC on 12.08.2009, which the appellant denied and prayed for trial.
5. During trial, statements of 14 prosecution witnesses were recorded and 20 documents were exhibited from the prosecution side in support of its case, including two dying declarations Ex. P/10 and Ex. P/19 of deceased, Smt. Suresh Devi, recorded by the Executive Magistrate, Rajgarh, at 04.15 PM and ASI, Mangilal (PW.12) at 03.50 PM on 16.05.2008 respectively.
6. The learned trial court after recording evidence of the prosecution proceeded to record the statements of accused appellant under Section 313 Cr.P.C. in which accused appellant denied the allegations of prosecution. An opportunity to lead evidence was granted to the accused, therefore, accused appellant examined himself as DW.1 in defence and said that no kerosene was poured by me, the deceased herself committed suicide while pouring kerosene upon her and my son, Mukesh, poured water on her mother to save. It was also stated by the accused that I am not consuming liquor.
7. The learned trial court after hearing the arguments considered the entire evidence and while relying upon the dying declaration (Ex. P/10 and Ex. P/19) of the deceased, convicted the accused appellant vide judgment dated 29.08.2011 for committing offences u/s. 302 and 498A of IPC, which is under challenge in this appeal.
8. Learned counsel for the accused appellant submitted that out of 14 prosecution witnesses, PW.1, Mamta, 22 years of age (daughter of deceased, PW.2, Mukesh 16 years of age (son of deceased), PW.3, Karni Singh (independent witness who present at the time of incident), PW.4 Ram Kumar (brother of accused appellant), PW.8 Om Prakash (brother of deceased Smt. Suresh Devi), PW.9 Jagdish (nephew of deceased), PW.10 (nephew of deceased), PW.11 Naresh (nephew of deceased), all the relatives turned hostile and did not support the allegations pr
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